JILEY SINGH Vs. THE ADDITIONAL DISTRICT JUDGE, MEERUT

JUDGEMENT

(1.) Shri L. S. Bhatnagar, predecessor-in-interest of respondents No.2 to 8, filed suit No, 468 of 1970 in the court of the Munsif against the petitioner for recovery of certain amount as arrears of rent and for his eviction. The suit was transferred to the court of the Judge small Causes in view of the provisions of U.P. Civil Laws Amendment Act (Act No. 37 of 1972) U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (Act No. XIII of 1972) (hereinafter referred to as the Act) had also come in force. On 12.8.1972 the petitioner made an application under Sec. 39 of the Act for permission to deposit the entire rent, damages, interest and costs of the suit to save his eviction. No amount was, however, deposited. The petitioner moved another application on 26.4.197 for permission to deposit the amount and for condonation of delay under Sec. 5 Limitation Act. A sum of Rs. 5440.00 was deposited on 5-5-1973 as rent for the period 3 1.5.1967 to 30.4.1973, including interest etc. The application was opposed and it was asserted that the benefit of Sec. 5 Limitation Act could not be extended to the deposit that the petitioner had to make in order to claim the benefit of Sec. 39 of the Act. The trial court allowed the petitioner's application for condonation of delay in depositing the rent, damages etc. Under Sec. 39 of the Act and dismissed the suit. The court also took the view that tile tenant was not liable to deposit the rent which had become time barred. The Landlord preferred a revision and the learned District Judge following the rule laid down in Shri Chand Gupta Vs. Madan Lal, 1973 A.L. 7. 635 held that Sec. 5 Limitation Act was not applicable to a proceeding under Sec. 39 of the Act and remanded the case to the trial court to decide the suit on merits. The defendant has challenged the correctness of the view taken by the learned District Judge.

(2.) There is no dispute that Act No. III of 1947 did not apply as the accommodation in dispute was a post 1951 construction. The Act came into force on July 15, 1972 and the suit was pending on that date. Under Sec. 39 of the Act it was open to the tenant to deposit in court the entire amount of rent and damages for use and occupation together with interest thereon and the landlord's full cost of the suit within one month from the date of commencement or from the date of his knowledge of the pendency of the suit. In the present case no such deposit was made upto Aug. 15, 1972. An application for making the deposit was actually made on 12.8.1972 but it was not followed by the requisite deposit. Again the landlord made an application on 29.11.1972 under Order 15, Rule 5, Civil Procedure Code. The tenant prayed for a month's time to make the requisite deposits on the ground that he was not keeping fit for a long time. Once again the tenant defaulted in making the deposit. On 26 4.1973 the tenant again applied for permission to deposit the amount. The actual deposit was made on 5.5.1973. In the application for condonation of delay in making the deposit the only ground set forth was that "due to some unavoidable circumstances, illness to the applicant's wife" the deposit could not be made.

(3.) Sec. 39 provides for deposit within one month from the date of commencement of the Act or from the date of knowledge of the pendency of the suit which ever be later. Admittedly no deposit was made as contemplated by Sec. 39. Learned counsel for the petitioner urged that Sec. 5 Limitation Act was not applicable as provided for under Sec. 35 and the trial court committed no error in extending the benefit of Sec. 5 Limitation Act to the petitioner. The question whether Sec. 5 Limitation Act was applicable to a proceedings under Sec. 39 of the Act came up for consideration before this court in Shri Chand Gupta's case (supra) and this Court took the view that it was not attracted I see no reason to differ from the view taken in the aforesaid case. However, assuming that Sec. 5 of the Limitation Act was applicable, the petitioner has failed to establish that there was sufficient cause for the delay in making the requisite deposit. He put forward a very vague plea that due to some unavoidable circumstances and illness of the applicant's wife the deposit could not be made. What was the nature of the wife's illness and when was she ill had not been disclosed. The "unavoidable circumstances" have not been explained. As noted above, on an earlier occasion the petitioner had come forward with a plea that because of his own ill health he could not make the deposit. On these materials it cannot possibly be held that there was sufficient cause for the delay in making the deposit. Having failed to deposit the requisite amount within the time provided for in Sec. 39, the petitioner was not entitled to claim the benefit of that provision.